881 F.

2d 1527

UNITED STATES of America, Plaintiff-Appellee,

v.
Donald Eugene STAGGS, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Charles David TEAFATILLER, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Peggy Savage TEAFATILLER, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Frank E. GABRIEL, Defendant-Appellant.
Nos. 88-1275, 88-1469, 88-1471 and 88-1473.

United States Court of Appeals,

Tenth Circuit.
Aug. 7, 1989.

Mervyn Hamburg, Atty., Appellate Div., Dept. of Justice, Washington,

D.C. (Roger Hilfiger, U.S. Atty., and Sheldon J. Sperling, Asst. U.S. Atty.,
Muskogee, Okl., with him on the brief), for plaintiff-appellee.
Emmett Colvin (Richard F. Aguire with him on the brief), Dallas, Tex.,
for defendants-appellants.
Before HOLLOWAY, Chief Judge, McKAY, LOGAN, SEYMOUR,
MOORE, ANDERSON, TACHA, BALDOCK, BRORBY and EBEL,
Circuit Judges.
BALDOCK, Circuit Judge.

Appellants were convicted by a jury on a variety of federal drug and drugrelated charges arising out of an alleged operation to produce amphetamine, a
schedule II controlled substance. See 21 C.F.R. Sec. 1308.12(d) (1987).

Specifically, appellants Donald Eugene Staggs (Staggs), Charles David "Rusty"

Teafatiller (Teafatiller), Peggy Savage Teafatiller, and Frank E. Gabriel
(Gabriel), were each convicted of conspiring to manufacture, possess with
intent to distribute, and distribute amphetamine, in violation of 21 U.S.C. Secs.
846 and 841(a)(1). 1 Teafatiller and Staggs also were convicted of engaging in a
continuing criminal enterprise (CCE), contrary to 21 U.S.C. Sec. 848.2 The jury
further convicted both Gabriel and Staggs on firearms charges; Gabriel of
possessing an unregistered automatic weapon in violation of 26 U.S.C. Sec.
5861(d), and Staggs of possessing a firearm shipped or transported in interstate
commerce after a felony conviction, contrary to 18 U.S.C. Sec. 922(g)(1).
Finally, Teafatiller was convicted of attempted tax evasion as prohibited by 26
U.S.C. Sec. 7201, and Teafatiller and his wife Peggy together were convicted of
conspiring to defraud the United States by obstructing the collection of the
revenue, in contravention of 18 U.S.C. Sec. 371. Our jurisdiction of this direct
appeal from the judgment of conviction arises under 28 U.S.C. Sec. 1291.
2

Appellants assert six grounds of error on appeal. First, Teafatiller and Staggs
challenge the indictment, claiming that the continuing criminal enterprise
charges in counts two and three failed to allege three felony violations
comprising the "series of violations" required by the CCE statute. Second,
Teafatiller and Staggs argue that their respective conspiracy convictions, being
lesser included offenses of the CCE offense, should be vacated. Third, while
not seeking reversal on this point, Teafatiller seeks correction of the judgment
and commitment order filed after trial because the sentence reflected therein
differs from that orally rendered by the trial judge. Fourth, all appellants claim
the case should be remanded for a hearing to determine whether the
government acted outrageously by seeking the cooperation of an attorney who,
according to appellants, had formerly represented them. Fifth, Gabriel argues
that the testimony of Sharon Gabriel was admitted in violation of the marital
privilege. Lastly, Gabriel contends that the evidence is insufficient to support
his conviction on the conspiracy count.

This case was assigned originally to a three-judge panel for determination of

these issues. Prior to the issuance of the proposed panel opinion, a majority of
the active judges of the Tenth Circuit voted sua sponte to hear the first of the
above-listed issues, regarding the sufficiency of the CCE indictments of
Teafatiller and Staggs, before the en banc court. By order dated March 29,
1989, the court defined the issue for en banc consideration as follows:

Whether a continuing criminal enterprise indictment which tracks the language

of the statute and contains three violations underlying the series in another
count of the indictment is sufficient to charge a continuing criminal enterprise

offense under 21 U.S.C. Sec. 848, consistent with the requirements for an
indictment under the fifth and sixth amendments of the Constitution.
5

Given this posture, we will address this appeal in two opinions, filed this day:
the first, herein, before the en banc court, considering the sufficiency of the
CCE indictments; and the second, before the original three-judge panel,
considering the remaining issues. See 881 F.2d 1546 (10th Cir.1989).

Appellants Teafatiller and Staggs were charged in a superseding indictment,

counts two and three respectively, with engaging in a continuing criminal
enterprise, proscribed at 21 U.S.C. Sec. 848. The essential elements of the CCE
offense include the following:

7 a continuing series of violations of the Controlled Substances Act of 1970, 21

(1)
U.S.C. et seq., (2) the violations were undertaken in concert with five or more other
persons with respect to whom the accused acted as organizer, supervisor or manager,
and (3) from which the accused obtained substantial income or resources.
8

United States v. Hall, 843 F.2d 408, 410 (10th Cir.1988) (quoting United States
v. Dickey, 736 F.2d 571, 596-97 (10th Cir.1984), cert. denied, 469 U.S. 1188,
105 S.Ct. 957, 83 L.Ed.2d 964 (1985)). Courts construing the first element, the
only one at issue here, have generally agreed that the "continuing series of
violations" specified by the CCE statute requires proof of three or more drug
violations in order to support a CCE conviction. United States v. Apodaca, 843
F.2d 421, 427 (10th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 325, 102 L.Ed.2d
342 (1988).

The appellants were charged, in the language of the CCE statute, with engaging
in "a continuing series of violations," the indictment specifying additionally that
Staggs and Teafatiller had "repeatedly violated Title 21, United States Code,
Section 841(a)(1) and other provisions of Title 21, regarding amphetamine, a
Schedule II, stimulant controlled substance.3 No underlying violations were
specified in the CCE counts, but at least three violations of Title 21 were
alleged with regard to each appellant in count one of the indictment, the
conspiracy count.4 Both Teafatiller, rec. vol. I, doc. 2, and Staggs, rec. vol. I,
doc. 12, filed motions to dismiss the indictment, which were denied. Rec. vol. I,
doc. 18. On appeal, Teafatiller and Staggs do not contend that three violations
were not charged and proved. Neither do appellants contend that any evidence
of uncharged violations was introduced at trial in support of the CCE counts.
Rather, they argue that the indictment was insufficient with regard to the CCE
counts in that those counts failed either to list the underlying violations or to
specifically incorporate by reference the violations charged in count one.

10

Generally, an indictment is sufficient if it contains the elements of the offense

charged, putting the defendant on fair notice of the charge against which he
must defend, and if it enables a defendant to assert an acquittal or conviction in
order to prevent being placed in jeopardy twice for the same offense. Hamling
v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590
(1974); United States v. Young, 862 F.2d 815, 819 (10th Cir.1988). Because
appellants could plead the entire record as a bar to future CCE or conspiracy
charges based on the predicate acts charged in the indictment or otherwise
considered by the jury, appellants are adequately protected from double
jeopardy, see Apodaca, 843 F.2d at 430 n. 3, and the central issue here, as
appellants conceded at oral argument, involves the notice function of this
indictment. Teafatiller and Staggs contend that by omitting from the CCE
counts the underlying violations, the indictment did not articulate the essential
facts constituting the offense as required by Fed.R.Crim.P. 7(c)(1). The
practical result, according to appellants, was that the indictment failed to
provide them the notice necessary to prepare their defense. We disagree.

11

An indictment is generally sufficient to overcome constitutional concerns if it

sets forth the words of the statute, as long as the statute itself adequately states
the elements of the offense. Hamling, 418 U.S. at 117, 94 S.Ct. at 2907; United
States v. Dunn, 841 F.2d 1026, 1029 (10th Cir.1988). Each of the other circuits
that has considered the sufficiency of a CCE indictment either has held
generally that a CCE indictment is sufficient if it tracks the language of the
statute, or specifically that an indictment need not allege the three violations
that underlie the "continuing series" element. United States v. Alvarez-Moreno,
874 F.2d 1402, 1408, 1410-11 (11th Cir.1989) (CCE indictment sufficient
when alleging offense in language of statute); United States v. Amend, 791
F.2d 1120, 1125 (4th Cir.) (indictment sufficient although not alleging five
individuals with whom defendant acted in concert), cert. denied, 479 U.S. 930,
107 S.Ct. 399, 93 L.Ed.2d 353 (1986); United States v. Sterling, 742 F.2d 521,
526 (9th Cir.1984) (no legal requirement that specific violations underlying
series be listed in indictment), cert. denied, 471 U.S. 1099, 105 S.Ct. 2322, 85
L.Ed.2d 840 (1985); United States v. Johnson, 575 F.2d 1347, 1356 (5th
Cir.1978) (indictment sufficient because it charged in the words of the statute
that the defendant and others had participated in a continuing criminal
enterprise), cert. denied, 440 U.S. 907, 99 S.Ct. 1214, 59 L.Ed.2d 454 (1979);
United States v. Sperling, 506 F.2d 1323, 1344 (2d Cir.1974) (indictment
adequate for preparation of defense and avoidance of double jeopardy although
not listing five individuals with whom defendant acted in concert or violations
underlying the charged series), cert. denied, 420 U.S. 962, 95 S.Ct. 1351, 43
L.Ed.2d 439 (1975).

12

Following oral argument before the en banc court, the court first considered
whether tracking the language of the statute with regard to the "continuing
series of violations" element was sufficient to meet the constitutional
requirements of an indictment. After discussion, the court was evenly divided
on that issue; therefore, we reach no conclusion about the sufficiency of an
indictment that does no more than track the language of the CCE statute. We do
hold, however, that a CCE indictment is sufficient where, as here, the CCE
counts charge appellants in the language of the statute, and the indictment
additionally alleges at least three violations in another count or counts. See
United States v. Moya-Gomez, 860 F.2d 706, 752 (7th Cir.1988) (defendant put
on actual notice by violations listed in other counts; indictment held sufficient),
cert. denied, --- U.S. ----, 109 S.Ct. 3221, 106 L.Ed.2d 571; United States v.
Becton, 751 F.2d 250, 256-57 (8th Cir.1984) (same), cert. denied, 472 U.S.
1018, 105 S.Ct. 3480, 87 L.Ed.2d 615 (1985).

13

Even had we held that an indictment must allege the violations underlying the
continuing series element, this indictment would be sufficient because here, the
CCE count need not have explicitly incorporated by reference violations listed
elsewhere in the indictment. The Seventh and Eighth Circuits have considered
the precise factual circumstance before us, from a similar legal perspective:
While neither adopting nor dispensing with a rule requiring a CCE indictment
to allege at least three violations, both courts considered the indictment
sufficient where such violations were alleged in other counts of the indictments.
Although recognizing the prosecutor's ability to avoid the issue by listing the
violations in the CCE count, the courts in Moya-Gomez and Becton both held
that the indictments afforded adequate notice when read as a whole. See MoyaGomez, 860 F.2d at 752; Becton, 751 F.2d at 256-57.

14

Similarly, appellants complained neither at trial nor on appeal that the proof of
the violations contained in count one surprised them, thereby hampering the
preparation of their defense. Because the allegations in count one afforded
appellants actual notice regarding the violations proved at trial in support of the
CCE charge, their argument essentially seeks reversal for reasons other than a
failure of notice. We approve of the approach in Moya-Gomez and Becton:
Because the essential issue is whether the appellants received notice adequate
for the preparation of their defense, it would be both anomalous and
hypertechnical to conclude that, even though the indictment provided such
notice, the notice function was not served because of the failure to explicitly
incorporate by reference count one, containing the charged violations. See
United States v. Esposito, 771 F.2d 283, 288-89 (7th Cir.1985) (Travel Act
indictment held sufficient where indictment read as a whole put defendants on
notice of element not alleged in Travel Act counts; dismissal "would be an

extreme example of technicality"), cert. denied, 475 U.S. 1011, 106 S.Ct. 1187,
89 L.Ed.2d 302 (1986). But see, e.g., United States v. Hooker, 841 F.2d 1225,
1231 (4th Cir.1988) (en banc) (element of offense missing from one count
cannot be read into that count from another unless explicitly incorporated by
reference).
15

This result is supported not only by the factually similar cases from other
circuits, but also by the weight of analogous precedent from this circuit. We
have said that in evaluating the sufficiency of the indictment, "the entire
document may be considered." United States v. Mobile Materials, Inc., 871
F.2d 902, 906 (10th Cir.1989) (per curiam); United States v. Metropolitan
Enterprises, Inc., 728 F.2d 444, 453 (10th Cir.1984); Mobile Materials, 871
F.2d at 919-20 (McKay, J., dissenting) ("we look first to the charging statement
and related provisions of count one, then to the remaining paragraphs of that
count, and finally to all 'four corners' of the indictment").

16

Particularly instructive here is United States v. Neal, 692 F.2d 1296 (10th
Cir.1982), which addressed the sufficiency of an indictment charging the
defendant in three counts, respectively, with 1) using extortionate means to
collect an extension of credit, 2) possessing an unregistered firearm, and 3)
distributing cocaine. The defendant challenged count one, arguing that it did
not contain sufficient specificity regarding the allegedly extortionate threats. In
evaluating the sufficiency of count one, which did not incorporate by reference
any other counts, see id. at 1301 n. 4, we considered "it proper to note that the
nature of the charge and the evidence before the grand jury are further revealed
by Counts II and III of the indictment." Id. at 1302. We upheld the indictment,
stating that it "was not fatally defective in view of the other details alleged,
which we have noted."5 Id. at 1303. Given this precedent, and keeping in mind
that in interpreting an indictment, we are "governed by practical rather than
technical considerations," United States v. Phillips, 869 F.2d 1361, 1364 (10th
Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 2074, 104 L.Ed.2d 638 (1989),
we will not require explicit incorporation by reference under the facts of this
case. 6

17

Despite our previous holdings, the dissent cites other circuits for the
proposition that "precedent solidly precludes incorporation except by express
reference." Dissent, op. at 1537. Significantly, however, three of the nine
circuits cited by the dissent would uphold this indictment on its face and never
reach that issue, as those circuits have concluded that a CCE indictment
tracking the language of the statute is sufficient. Amend, 791 F.2d at 1125 (4th
Cir.); Johnson, 575 F.2d at 1356 (5th Cir.); Sterling, 742 F.2d at 526 (9th Cir.).
The other six circuits cited by the dissent have not addressed the sufficiency of

an indictment which tracks the language of the CCE statute. Thus, as noted
earlier, the decisions of the Fourth, Fifth, and Ninth Circuits fall into line with
those other circuits which have previously considered the CCE indictment
issue, see Alvarez-Moreno, 874 F.2d at 1402 (11th Cir.); Sperling, 506 F.2d at
1344 (2d Cir.), "solid" precedent that the dissent is not nearly so enamored of in
its Part II. See Dissent, op. at 1540, 1544 n. 6. Further, none of the other six
express incorporation by reference cases cited by the dissent discusses how that
rule of express incorporation relates to the constitutional protections afforded
by good indictments. To rely on those cases rather than a considered analysis of
such protections would advance a technical evaluation of indictments, expressly
disfavored in modern criminal pleading, without necessarily promoting the
constitutional rights of criminal defendants. Thus we turn to the dissent's
discussion of those rights.7
18

The portion of the dissent dealing directly with the substantive goals of
indictments relies on the decision of the Supreme Court in Russell v. United
States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962). In particular, the
dissent echoes the fear expressed in Russell that "a defendant [could] be
convicted on the basis of facts not found by, or perhaps not even presented to,
the grand jury." Id. at 770, 82 S.Ct. at 1050. While the dissent criticizes what it
perceives as our failure to address the Russell concern with the grand jury
function, the fear articulated in Russell simply does not manifest itself in this
case, where the facts at issue were both presented to and found by the grand
jury.8 Notably, our approach to this indictment is mirrored by that of the
defendants who have never suggested, either at trial or on appeal, that their
right to be tried on charges presented to a grand jury has been prejudiced; they
have instead challenged the indictment on the ground that it hampered the
preparation of their defense. Additionally, our prior decisions where we have
considered the entire indictment in evaluating the sufficiency of a count have
explicitly considered the Russell concern with the grand jury function, and have
found that function not to be adversely implicated by considering other counts
not expressly incorporated by reference. See Neal, 692 F.2d at 1302 & n. 5
("We also feel it proper to note that the nature of the charge and the evidence
before the grand jury are further revealed by Counts II and III of the
indictment.") (emphasis added); see also Mobile Materials, 871 F.2d at 910; id.
at 919-20 (McKay, J., dissenting).

19

And the dissent's concern that "the majority's holding would not restrict the
prosecutor to the charges returned by the grand jury," Dissent, op. at 1540, is
misplaced in the context of this case. The defendants were not convicted of any
crimes other than those they were charged with, nor was there evidence
introduced at trial other than that alleged in the indictment, as the dissent

acknowledges. The statement that "neither the majority's holding nor its logic
necessarily requires" such a factual scenario is not surprising, because we are
guided by the sound judicial principle enunciated in Article III of the
Constitution to judge only the situation before us.9
20

In addition to their notice and double jeopardy arguments, Teafatiller and

Staggs assert another basis for challenging the sufficiency of the indictment.
The appellants argue that because the jury found guilt on the conspiracy count,
the jury improperly considered the overt acts listed therein as proved for
purposes of the CCE count. According to the appellants, this result occurred
because the jury lacked the guidance of a more specific CCE count. The jury
was guided by more than the indictment, however, as the trial court instructed
the jury that it only had to find the existence of one overt act in order to convict
on the conspiracy count, rec. vol. XIII at 947-48, while it was required to find
three drug violations in order to find guilt on the CCE charge. Id. at 949-50.
The trial court also instructed the jury that its verdict on any one count should
not control the verdict with regard to any other count. Id. at 941-42. Thus,
appellants' contention that the jury may have convicted on the CCE count
based solely on its finding of guilt on the conspiracy count is without merit. See
United States v. Hall, 843 F.2d 408, 411 (10th Cir.1988). The indictment is
sufficient to charge the CCE offense and support the convictions of Teafatiller
and Staggs. Based on the foregoing, the CCE convictions of appellants
Teafatiller and Staggs are AFFIRMED. The panel opinion filed this same day
resolves the balance of the issues raised by this appeal.
LOGAN, Circuit Judge, concurring:

21

We heard the instant case en banc on the sufficiency of the indictment issue to
see if we could obtain a majority on issues similar, but not identical, to the issue
on which we split 5-5 in United States v. Rivera, 874 F.2d 754 (10th Cir.1989)
(en banc). As one of the five votes that found the CCE indictment in Rivera
insufficient, I take this opportunity to explain why I join others to produce a
majority upholding the CCE indictment now before us.

22

Generally indictments tracking the words of the underlying criminal statute are
valid. Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41
L.Ed.2d 590 (1974). The other circuits cited in Judge Baldock's opinion have
applied that rule to uphold CCE indictments, often with little or no analytical
discussion. The indictment before us does state the elements of the CCE
offense--the contested element here being participation in "a continuing series
of violations of this title [II] or title III." 21 U.S.C. Sec. 848 (before 1986
amendment).

23

Charging a CCE violation only in the language of the statute, however, presents
two problems not usually present in the charging of other crimes. One is how
can the court know that enough violations were presented to the grand jury to
satisfy the "continuing series" element, permitting the reviewing court to
monitor the defendant's Fifth Amendment right to an "indictment of a Grand
Jury." In Rivera only two violations were mentioned in all counts of the
indictment and no proof was offered that the grand jury had considered and
found evidence of a third violation. Thus, I was not able to satisfy myself that
the grand jury indeed identified the defendant with three violations, the
minimum the courts have required for a "continuing series of violations," under
Sec. 848. See United States v. Apodaca, 843 F.2d 421, 427 (10th Cir.), cert.
denied, --- U.S. ----, 109 S.Ct. 325, 102 L.Ed.2d 342 (1988).

24

In the case before us, I am sure that the grand jury did identify defendants
Teafatiller and Staggs with at least three violations, because it so charged them
in other counts returned in the same indictment containing the CCE count.
Thus, my concern in Rivera, that the grand jury had not performed its Fifth
Amendment function, is satisfied here.

25

Relying upon Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d
240 (1962), the dissent would find a Fifth Amendment "indictment of a Grand
Jury" violation unless the exact offenses presented to the grand jury and used to
convict are set out in the indictment. They rely upon the words of the Supreme
Court in Russell that a defendant should not "be convicted on the basis of facts
not found by, and perhaps not even presented to, the grand jury which indicted
him." Id. at 770, 82 S.Ct. at 1050 (emphasis added). I think the dissenters take
the words of Russell too literally. Nowhere in the criminal law do we require all
evidence presented at trial to be presented to the grand jury; it is custom and
practice to present just enough to get the indictment. In a bank robbery case one
teller witness may give testimony to the grand jury, but a different or additional
teller may testify at trial. Facts and witnesses uncovered after the indictment,
and therefore not presented to the grand jury, may be presented at trial, so long
as the offense proved is the same.

26

Is proof that defendant committed an additional or different violation of Title II

or III than those presented to the grand jury the same as using a teller who did
not appear before the grand jury to identify a bank robber at trial? The
dissenters would answer no, because they view the precise violations presented
to the grand jury, which they would require to be set out in the CCE count, to
be "elements" of the crime. To me the element is "a continuing series of
violations," and the specific violations the prosecutor presents are merely the
evidence used to prove that element. The dissenters' reasoning would require

that the five individuals with whom the defendant allegedly has acted in
concert, see 21 U.S.C. Sec. 848(c)(2), be identified by name in the indictment:
their identities would be "elements" of the CCE crime. Because I believe the
three violations are evidence of the CCE element, I believe it is permissible to
prove any three violations at trial. It is little different from utilizing eyewitness
B instead of eyewitness A, who went before the grand jury, to prove a bank
robbery.
27

This raises, however, the second problem in CCE indictments not present in
many other federal criminal indictments. That is the defendant's Sixth
Amendment right "to be informed of the nature and cause of the accusation,"
sufficiently to prepare a defense: the notice problem.1

28

Unlike civil cases, in which full discovery and disclosure is the norm, the
federal criminal law contemplates only partial disclosure of the government's
case. See Fed.R.Crim.P. 16, Conf.Comm.Notes, H.R.Rep. No. 94-414 (In
rejecting an amendment to Rule 16, committee stated that "[a] majority of the
[House and Senate] Conferees believe it is not in the interest of the effective
administration of criminal justice to require that the government or the
defendant be forced to reveal the names and addresses of its witnesses before
trial."). Thus, the courts must perform a balancing act between requiring
enough disclosure to fairly treat the defendant and enable him to prepare a
defense and preserving the government's right to shield witnesses and evidence
not required to be disclosed by the criminal procedure rules. Important in this
balance is the bill of particulars. See Fed.R.Crim.P. 7(f). The availability of the
bill of particulars, I believe, provides adequate protection for the defendant's
Sixth Amendment rights by giving him the means in a CCE case like that at bar
to learn the specific violations the government intends to use at trial. See
United States v. Debrow, 346 U.S. 374, 378, 74 S.Ct. 113, 115, 98 L.Ed. 92
(1953); Glasser v. United States, 315 U.S. 60, 66, 62 S.Ct. 457, 463, 86 L.Ed.
680 (1942). Use of the bill of particulars is more desirable than requiring the
government to reconvene the grand jury for a superceding indictment should
the prosecutor want to present some different evidence on the "continuing
series of violations" element than was originally presented. Although we
review the grant or denial of a bill of particulars by an abuse of discretion
standard, e.g., United States v. Dunn, 841 F.2d 1026, 1029 (10th Cir.1988), the
trial court's discretion would be abused, in my view, if the district court refused
to grant a bill requiring the government to reveal the violations it intended to
prove to establish the "continuing series" element.

29

In the instant case I see no constitutional violations in this indictment, and,

therefore, I concur in Judge Baldock's opinion.

30

EBEL, Circuit Judge, dissenting, with whom MCKAY and SEYMOUR, Circuit
Judges, join:

31

The appellants' continuing criminal enterprise ("CCE") convictions should, in

my opinion, be reversed because the indictment in this case violated the
appellants' constitutional right to be tried only upon charges that have been
passed upon by a grand jury. My fundamental disagreement with the majority's
opinion is that it focuses only upon notice concerns and does not adequately
address the Fifth Amendment requirement that "[n]o person shall be held to
answer for a capital or otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury."

32

We granted en banc review on the following question:

33
Whether
a continuing criminal enterprise indictment which tracks the language of
the statute and contains three violations underlying the series in another count of the
indictment is sufficient to charge a continuing criminal enterprise offense under 21
U.S.C. Sec. 848, consistent with the requirements for an indictment under the fifth
and sixth amendments of the Constitution.
34

That question necessarily involves two issues: (1) whether it is constitutionally

sufficient for a CCE count in an indictment merely to track the language of the
CCE statute without alleging the predicate acts that constitute the criminal
enterprise, and (2) if tracking the language of the statute is not sufficient,
whether the constitutional infirmity can be remedied by looking to allegations
in other counts that have not been specifically incorporated into the CCE count.

35

The majority does not decide the first question because this court is evenly
divided on that issue. See United States v. Rivera, 874 F.2d 754 (10th
Cir.1989). Instead, the majority addresses the second issue and concludes that a
CCE count that merely tracks the statutory language is sufficient if the three
qualifying drug offenses are alleged in another count of the indictment, even
though the CCE count does not expressly incorporate the allegations of the
other count.

36

I believe that Counts II and III of the indictment, standing alone, are
constitutionally infirm because they do not protect the appellants' Fifth
Amendment right to be tried only for charges returned by a grand jury. Further,
the infirmity of those counts is not cured by the allegations of specific drug
offenses found in Count I because the allegations of Count I are not expressly
incorporated into Counts II and III. Accordingly, I respectfully dissent.

I.
37
INCORPORATING
ALLEGATIONS FROM OTHER COUNTS NOT
PERMITTED IN
THE ABSENCE OF EXPRESS INCORPORATION
38

The majority opinion holds that deficiencies in one count of a multi-count

indictment can be cured by looking to allegations found in other counts of the
same indictment, even though such allegations are not expressly incorporated
into the deficient count. I believe that the majority is mistaken for at least four
reasons.

A. Precedent Solidly Precludes Incorporation Except by Express Reference

39
40

The majority's holding conflicts with cases from nine other circuits that have
held that allegations in one count cannot supply missing allegations in another
count in the absence of express incorporation by reference. United States v.
Fulcher, 626 F.2d 985, 988 (D.C.Cir.) ("Each count in an indictment is
regarded as if it was a separate indictment. Each count must stand on its own,
and cannot depend for its validity on the allegations of any other count not
specifically incorporated."), cert. denied, 449 U.S. 839, 101 S.Ct. 116, 66
L.Ed.2d 46 (1980); United States v. Winter, 663 F.2d 1120, 1138 (1st Cir.1981)
(same), cert. denied sub nom. Goldenberg v. United States, 460 U.S. 1011, 103
S.Ct. 1249, 75 L.Ed.2d 479 (1983); United States v. Markus, 721 F.2d 442, 444
(3d Cir.1983) (court refused to imply incorporation because "nothing shall be
added to an indictment without the concurrence of the grand jury"); United
States v. Hooker, 841 F.2d 1225, 1231 (4th Cir.1988) (en banc) ("court must
read each count of indictment independently of all other counts"); United States
v. Hajecate, 683 F.2d 894, 901 (5th Cir.1982) ("[A]n implicit reference [to
other counts in an indictment] does not satisfy the requirements of due
process.... [W]hile the specificity required in an indictment can be achieved by
incorporation of another count, this incorporation must be express, not
implicit."), cert. denied sub nom. Eisenberg v. United States, 461 U.S. 927, 103
S.Ct. 2086, 77 L.Ed.2d 298 (1983); United States v. Gray, 790 F.2d 1290, 1298
(6th Cir.1986) ("Although Federal Rule of Criminal Procedure 7(c) permits the
government to incorporate in one count allegations made in another count, the
incorporation must be express, not implicit."), rev'd on other grounds sub nom.
McNally v. United States, United States v. McNally, 483 U.S. 350, 107 S.Ct.
2875, 97 L.Ed.2d 292 (1987); United States v. Gordon, 253 F.2d 177, 180 (7th
Cir.1958) (allegation of value of stolen goods from other counts could not be
read into a different count in the absence of express incorporation); United
States v. Miller, 774 F.2d 883, 885 (8th Cir.1985) ("It is well-settled, however,

that each count of an indictment 'must stand on its own, and cannot depend for
its validity on the allegations of any other count not specifically incorporated.'
"); Walker v. United States, 176 F.2d 796, 798 (9th Cir.1949) ("[E]ach count in
an indictment is regarded as if it were a separate indictment and must be
sufficient in itself. Therefore, it must stand or fall on its own allegations without
reference to other counts not expressly incorporated by reference.").
41

The Winter case from the First Circuit is particularly relevant here. In Winter,
Count I of a multi-count indictment charged several defendants with conspiring
to violate 18 U.S.C. Sec. 1962(c) (RICO) and listed several predicate acts
committed by the defendants. However, Charles and James DeMetri, two of the
defendants charged in Count I, were named only in connection with at most one
predicate act, whereas two predicate acts are required to charge an accused with
conspiracy to violate RICO. 663 F.2d at 1136. The government argued that the
indictment was sufficient as against the DeMetris because Counts 5 and 32 of
the same indictment properly charged them with committing two predicate
offenses. The court rejected the government's argument:

42
Count
One, however, does not incorporate by reference either Count Five or Count
Thirty-Two and neither of them refers to Count One. Only Count Two, which does
not name the DeMetris as defendants, incorporates Count One by reference. The
indictment as drawn does not admit of Counts Five and Thirty-Two being used as
predicate acts for Count One. "Each count in an indictment is regarded as if it was a
separate indictment." ... "Each count must stand on its own, and cannot depend for
its validity on allegations in another count not specifically incorporated." ...
43

We find Count One legally insufficient as to Charles and James DeMetri

because it fails to charge that they agreed to commit two predicate crimes. It
must, therefore, be dismissed as to them, and their convictions on it reversed.

44

Id. at 1138 (quoting Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189,
190, 76 L.Ed. 356 (1932), and Fulcher, 626 F.2d at 988). Just as the First
Circuit found the indictment invalid against the DeMetris because Count One
failed to incorporate by reference the predicate acts in Counts Five and ThirtyTwo, I would hold Counts II and III of the indictment here invalid because they
failed to incorporate by reference the predicate acts in Count I.

45

Numerous commentators agree that "each count is considered as if it were a

separate indictment, and must be sufficient without reference to other counts
unless they are expressly incorporated by reference". 1 Wright & Miller,
Fed.Pract. & Proc. Sec. 123; see also 9 Fed.Proc.L.Ed. Sec. 22:489 ("each count
must be considered as a separate indictment or information for purposes of

ascertaining its sufficiency, at least where no other count has been specifically
incorporated"). Cf. Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189,
190, 76 L.Ed. 356 (1932) ("Each count in an indictment is regarded as if it was
a separate indictment.").1
46

Notwithstanding the majority's reliance on our previous case of United States v.

Neal, 692 F.2d 1296 (10th Cir.1982), I do not believe that case is controlling.
There we explicitly held that the allegations in the first count were sufficient in
themselves to charge the offense. Therefore it was not necessary to incorporate
allegations from other counts in order to supply essential missing allegations.
Id. at 1301. The reference to allegations in other counts of that indictment was
largely in response to the defendant's challenge that he was inadequately
appraised of the content and nature of the charge against him. This court merely
stated that the nature of the charge and the evidence before the grand jury were
"further revealed" by other counts of the indictment. Id. at 1302. That is far
from a holding that missing allegations can be supplanted from one count to
another.2

47 Right to be Indicted by a Grand Jury Precludes Incorporation Except by Express

B.
Reference
48

The majority errs by failing adequately to address the Fifth Amendment right of
an accused to be tried only upon charges returned by a grand jury. The majority
reaches its conclusion that the allegations in Count I of the indictment can
remedy any constitutional deficiencies in Counts II and III by framing the
central issue as involving "the notice function of the indictment," and it then
concludes that the appellants received adequate notice of the charges from the
allegations in Count I.

49

However, the rationale for treating each count in an indictment separately

extends beyond a concern for notice to the defendant, although notice
obviously is important. The rationale also encompasses the concern expressed
in Russell v. United States, 369 U.S. 749, 770, 82 S.Ct. 1038, 1050, 8 L.Ed.2d
240 (1962), that courts will have "to make a subsequent guess as to what was in
the minds of the grand jury at the time they returned the indictment," which
could allow "a defendant to be convicted on the basis of facts not found by, or
perhaps not even presented to, the grand jury." 369 U.S. at 770, 82 S.Ct. at
1050.

50

The inescapable problem in this case is that we do not know, and cannot know,
whether the grand jury found probable cause to indict the appellants for CCE
violations based upon the same factual allegations that were contained in Count

I, or whether the grand jury determined that the organizational aspects of the
CCE violation were linked instead to other predicate acts that were not included
in Count I. That the evidence presented at trial conformed with the allegations
in Count I does not help us because we still do not know if those allegations
were what the grand jury considered when it charged the appellants with CCE.
Therefore, the indictment did not conform to the constitutional standards
expressed in Russell.
51 Rule 7(c)(1) of the Federal Rules of Criminal Procedure Allows Incorporation
C.
Only by Express Reference
52

The majority's holding is contrary to Rule 7(c)(1) of the Federal Rules of

Criminal Procedure, which states that "[a]llegations made in one count may be
incorporated by reference in another count." (Emphasis added.) By expressly
providing the manner in which incorporation can occur, the Rule suggests that
alternative methods of incorporation are excluded under the "long-honored rule
of statutory construction, expressio unius est exclusio alterius (the expression of
one thing is the exclusion of others)." United States v. Cardenas, 864 F.2d
1528, 1434 (10th Cir.1989). If incorporation were automatic among each count
in a multi-count indictment, then there would have been no reason for the
drafters of the Rule to have added the words, "by reference," particularly when
"[t]he draftsmen of the Rules fully realized that the edifice they were erecting
must rest on the sure foundation of fundamental rights." Cummings, The Third
Great Adventure, 29 A.B.A.J. 654, 655 (1943) (discussing history of Rules of
Criminal Procedure).D. The Majority's Holding Would Not Restrict the
Prosecutor to the Charges Returned by the Grand Jury

53

Because Counts II and III do not incorporate by reference the allegations in

Count I, the prosecutor presumably was not limited at trial by those allegations.
Although the prosecutor here did in fact limit his CCE evidence to the
transactions alleged in Count I, neither the majority's holding nor its logic
necessarily requires that he have done so. Because the prosecutor apparently
was not so bound, he should not have received the benefit of the allegations in
Count I to sustain any deficiencies in Counts II and III.

54

For these reasons, I would hold that the factual allegations in Count I cannot be
used to cure any deficiencies in Counts II and III because those allegations are
not specifically incorporated by reference into Counts II and III.

II.
CCE COUNT IS INSUFFICIENT WHICH MERELY TRACKS STATUTORY
55

LANGUAGE WITHOUT ALLEGING SPECIFIC PREDICATE ACTS

56
57

Because I believe that the allegations of Counts I cannot be read into Counts II
or III, I cannot avoid addressing the issue of whether Counts II and III are
constitutionally sufficient independent of Count I. I would hold that Counts II
and III are not constitutionally sufficient because they failed to protect the
appellants' Fifth Amendment right to be tried only upon charges specifically
returned by a grand jury.

A. The Protective Function of the Grand Jury

58
59

In my view, this case is controlled by Russell v. United States, 369 U.S. 749, 82
S.Ct. 1038, 8 L.Ed.2d 240 (1962). In Russell, the Supreme Court held that a
defendant cannot be convicted on the basis of facts that may not have been
specifically presented to, and found by, the grand jury:

60 allow the prosecutor, or the court, to make a subsequent guess as to what was in
To
the minds of the grand jury at the time they returned the indictment would deprive
the defendant of a basic protection which the guaranty of the intervention of a grand
jury was designed to secure. For a defendant could then be convicted on the basis of
facts not found by, and perhaps not even presented to, the grand jury which indicted
him.
61

Id. at 770, 82 S.Ct. at 1050 (emphasis added).

62

Russell involved defendants who were charged with refusing to answer certain
questions when summoned to testify before a congressional subcommittee. For
each defendant, the indictment failed to identify the subject that was under
subcommittee inquiry at the time the witness was interrogated. Rather, the
indictment stated only the conclusory allegation that the questions to which
answers were refused "were pertinent to the question under inquiry." Id. at 752,
82 S.Ct. at 1041.

63

The Court there held that the indictments were deficient because they failed to
satisfy the Fifth and Sixth Amendments. The Court emphasized that the
constitutional import of charging an accused with specificity lies not only with
providing notice to the accused to allow him to prepare his defense, but also
with ensuring that the accused is not convicted of any offense not charged by
the grand jury, as evidenced by the indictment. Id. at 770, 82 S.Ct. at 1050.
Indeed, "[t]he very purpose of the requirement that a man be indicted by grand
jury is to limit his jeopardy to offenses charged by a group of his fellow citizens
acting independently of either prosecuting attorney or judge." Id. at 771, 82

S.Ct. at 1051 (quoting Stirone v. United States, 361 U.S. 212, 218, 80 S.Ct.
270, 273, 4 L.Ed.2d 252 (1960)).
64

The principles enunciated in Russell are deeply entrenched in our legal

heritage:

65

The constitutional provision that a trial may be held in a serious federal

criminal case only if a grand jury has first intervened reflects centuries of
antecedent development of common law, going back to the Assize of Clarendon
in 1166. "The grand jury is an English institution, brought to this country by the
early colonists and incorporated in the Constitution by the Founders. There is
every reason to believe that our constitutional grand jury was intended to
operate substantially like its English progenitor. The basic purpose of the
English grand jury was to provide a fair method for instituting criminal
proceedings against persons believed to have committed crimes."

66

Russell, 369 U.S. at 761, 82 S.Ct. at 1045 (quoting Costello v. United States,
350 U.S. 359, 362, 76 S.Ct. 406, 408, 100 L.Ed. 397 (1956)).

67

Over 100 years ago, in Ex Parte Bain, 121 U.S. 1, 12, 7 S.Ct. 781, 787, 30
L.Ed. 849 (1887), the Supreme Court explained the importance of the
protective aspects of the grand jury system:

68

It has been said that, since there is no danger to the citizen from the
oppressions of a monarch, or of any form of executive power, there is no longer
need of a grand jury. But, whatever force may be given to this argument, it
remains true that the grand jury is as valuable as ever in securing, in the
language of Chief Justice Shaw in the case of Jones v. Robbins, 8 Gray, 329,
"individual citizens" "from an open and public accusation of crime, and from
the trouble, expense, and anxiety of a public trial before a probable cause is
established by the presentment and indictment of a grand jury;" and "in case of
high offences" it "is justly regarded as one of the securities to the innocent
against hasty, malicious, and oppressive public prosecutions."

69

The Supreme Court recently has reaffirmed Bain 's holding that a defendant
cannot be convicted of an offense different from that which was stated in the
indictment:

70it lies within the province of a court to change the charging part of an indictment
If
to suit its own notions of what it ought to have been, or what the grand jury would
probably have made it if their attention had been called to suggested changes, the

great importance which the common law attaches to an indictment by a grand jury,
as a prerequisite to a prisoner's trial for a crime, and without which the Constitution
says "no person shall be held to answer," may be frittered away until its value is
almost destroyed.
71

United States v. Miller, 471 U.S. 130, 142-43, 105 S.Ct. 1811, 1818, 85
L.Ed.2d 99 (1985) (quoting Bain, 121 U.S. at 10, 7 S.Ct. at 786). The Court
also reiterated the rule that "nothing can be added to an indictment without the
concurrence of the grand jury by which the bill was found." Id. at 143, 105
S.Ct. at 1818 (emphasis added; quoting United States v. Norris, 281 U.S. 619,
622, 50 S.Ct. 424, 425, 74 L.Ed. 1076 (1930)). 3

72

This court has similarly emphasized the importance of the grand jury and its
protective function:

73 function of the grand jury "was not only to examine into the commission of
The
crimes, but to stand between the prosecutor and the accused, and to determine
whether the charge was founded upon credible testimony or was dictated by malice
or personal ill will." We are mindful of the oft-quoted words of Judge Learned Hand
that "[s]ave for torture, it would be hard to find a more effective tool of tyranny than
the power of unlimited and unchecked ex parte examination."
74

United States v. Kilpatrick, 821 F.2d 1456, 1465 (10th Cir.1987) (quoting Hale
v. Henkel, 201 U.S. 43, 59, 26 S.Ct. 370, 372, 50 L.Ed. 652 (1906), and United
States v. Remington, 208 F.2d 567, 573 (2d Cir.1953) (L. Hand, J.,
dissenting)), aff'd sub nom. Bank of Nova Scotia v. United States, 487 U.S.
250, 108 S.Ct. 2369, 101 L.Ed.2d 228 (1988).

75

This history makes clear that a grand jury indictment is more than just a means
of notifying the defendant of the charges against him. The Constitution's
requirement that citizens decide whether there is probable cause to try an
accused for a serious crime serves as a check on the discretion of overzealous
prosecutors.B. Counts II and III are Constitutionally Infirm Under the
Indictment Clause of the Fifth Amendment

76

In light of the importance the Supreme Court has consistently placed on an

accused's right to tried only on charges passed upon by a grand jury, I would
hold that Counts II and III, viewed independently from Count I, violated the
appellants' Fifth Amendment right to a grand jury indictment. The bare
statutory language contained in Counts II and III gave no assurances
whatsoever that the grand jury found, or even considered, the incidents or

transactions for which the appellants ultimately were tried and convicted.
77

Because Counts II and III did not identify any specific predicate acts, the
prosecutor could circumvent the grand jury by relying on predicate acts at trial
other than those that were passed upon by the grand jury. Russell flatly rejected
that result:

78 it be once held that changes can be made by the consent or the order of the court
[I]f
in the body of the indictment as presented by the grand jury, and the prisoner can be
called upon to answer to the indictment as thus changed, the restriction which the
constitution places upon the power of the court, in regard to the prerequisite of an
indictment, in reality no longer exists.
79

369 U.S. at 771, 82 S.Ct. at 1051 (quoting Bain, 121 U.S. at 10, 7 S.Ct. at 786).

80

A grand jury indictment is not an instrument that deals simply in abstract legal
theory. Rather, it is an instrument of practical function--to ensure that there are
sufficient facts constituting a crime alleged against a defendant to warrant a
trial:

81is an elementary principle of criminal pleading, that where the definition of an

It
offence, whether it be at common law or by statute, "includes generic terms, it is not
sufficient that the indictment shall charge the offence in the same generic terms as in
the definition; but it must state the species--it must descend to the particulars. ["] ...
For this, facts are to be stated, not conclusions of law alone. A crime is made up of
acts and intent; and these must be set forth in the indictment with reasonable
particularity of time, place, and circumstances.
82

United States v. Cruikshank, 92 U.S. 542, 558, 23 L.Ed. 588 (1875) (emphasis
added; citation omitted), quoted in part in Russell, 369 U.S. at 765, 82 S.Ct. at
1047. "Undoubtedly the language of a statute may be used in the general
description of an offence, but it must be accompanied with such a statement of
the facts and circumstances as will inform the accused of the specific offence,
coming under the general description, with which he is charged." Hamling v.
United States, 418 U.S. 87, 117-18, 94 S.Ct. 2887, 2907-08, 41 L.Ed.2d 590
(1974) (quoting United States v. Hess, 124 U.S. 483, 487, 8 S.Ct. 571, 573, 31
L.Ed. 516 (1888)). See also United States v. Curtis, 506 F.2d 985, 990 (10th
Cir.1974) (an indictment must contain specific factual allegations of "the nature
or character of any scheme or artifice to defraud," and "it is not sufficient in this
regard to merely plead the statutory language").

83

The rule that material facts and circumstances must be pleaded in the

indictment has been codified in Fed.R.Crim.P. 7(c)(1), which provides: "The

indictment or the information shall be a plain, concise and definite written
statement of the essential facts constituting the offense charged." (Emphasis
added). If we were to abandon that standard and allow the grand jury to indict
only in the general language of a statute, it would then be left to the prosecutor
to decide which transaction or criminal conduct he wanted to bring within the
general language of the indictment. The great importance that the Constitution
assigns to the grand jury as gatekeeper would "be frittered away until its value
is almost destroyed." Russell, 369 U.S. at 771, 82 S.Ct. at 1051.
84

Moreover, if we did not require "essential" facts to be set forth in the

indictment, we also would incapacitate reviewing courts from determining what
the grand jury did. Those courts would be required to "guess as to what was in
the minds of the grand jury," again diluting to an impermissible degree the
defendant's right to answer only for specific offenses that were returned by the
grand jury. See id. at 770, 82 S.Ct. at 1050.

85

There is no dispute that it is "essential" to the crime of CCE that the defendant
engage in three or more qualifying drug transactions. See United States v.
Apodaca, 843 F.2d 421, 427 (10th Cir.), cert. denied, --- U.S. ----, 109 S.Ct.
325, 102 L.Ed.2d 342 (1988). The crime of CCE is engaging in three or more
qualifying drug transactions undertaken in concert with others over whom the
defendant acts in a supervisory capacity. Unless the three component drug
transactions are alleged with specificity in the indictment, the accused and the
court cannot know what activity the grand jury found to constitute a continuing
criminal enterprise. Where the essential factual components of CCE are not
alleged with particularity, the indictment fails to "descend to the particulars"; it
fails to set forth "with reasonable particularity the time, place, and
circumstances"; it fails to contain "a statement of the facts and circumstances as
will inform the accused of the specific offence"; and it fails to contain a
"definite written statement of the essential facts constituting the offense
charged."4

86

I have no doubt that the majority would strike down an indictment that charged
only, in the words of 18 U.S.C. Sec. 2113, that the defendant took or attempted
to take something of value from a "bank, credit union, or any savings and loan
association" located somewhere within the Eastern District of Oklahoma within
the time period of November 1985 to August 1987. Such an indictment,
although stating the statutory prohibition that was violated, would fail to
identify the particular offense or transaction for which the defendant is being
prosecuted. Counts II and III of the indictment here, in my opinion, have the
same infirmity.

87

This court has frequently sustained the dismissal of civil actions for failure to
plead sufficient facts, notwithstanding the absence of Fifth Amendment grand
jury concerns and Sixth Amendment notice concerns, the liberal pleading
practices permitted by Rule 8 of the Federal Rules of Civil Procedure, and the
availability of broad discovery in civil cases. E.g., Hammond v. Bales, 843 F.2d
1320, 1323 (10th Cir.1988) ("[W]here a plaintiff in a Sec. 1983 action attempts
to assert the necessary state action by implicating a state official in a conspiracy
with a private defendant, the pleadings must specifically present facts showing
agreement and concerted action. Conclusory allegations without supporting
facts are insufficient.") (citing Sooner Products Co. v. McBride, 708 F.2d 510,
512 (10th Cir.1983); Mountain View Pharmacy v. Abbott Laboratories, 630
F.2d 1383, 1387 (10th Cir.1980) (complaint that did "little more than recite the
relevant anti-trust laws" without providing underlying facts was properly
subject to dismissal). Moreover, this court has on several occasions dismissed
pro se complaints, which are to be liberally construed, for failure to plead
sufficient facts. E.g., Durre v. Dempsey, 869 F.2d 543, 545 (10th Cir.1989)
(prisoner's conspiracy action was properly dismissed where the complaint failed
to allege specific facts showing an agreement and concerted action); Cotner v.
Hopkins, 795 F.2d 900, 902 (10th Cir.1986) (prisoner's complaint was properly
dismissed where allegations were conclusory and unsupported by underlying
facts). A fortiori, a criminal indictment, which carries greater constitutional
proscriptions than do civil complaints, should be required to plead specific
transactions or events that constitute the alleged offense.5

88

Because the bare statutory language of Counts II and III provides none of the
protections guaranteed by the Fifth Amendment right to a grand jury
indictment, I would hold that those counts are not sufficient to charge the
appellants with CCE.6

89 Counts II and III do not Provide Adequate Notice Under the Right to be Informed
C.
Clause of the Sixth Amendment
90

A second issue that gives me concern is whether Counts II and III, which cite
little more than the statutory language of CCE and which do not incorporate the
allegations found in Count I, violated the appellants' Sixth Amendment right to
be informed of the "nature and cause of the accusation" against them. Because I
would hold that Counts II and III are constitutionally infirm under the grand
jury clause of the Fifth Amendment, I do not dwell on the notice function of the
indictment under the Sixth Amendment except to point out that, in my opinion,
the appellants also received constitutionally inadequate notice of the charges
against them when Counts II and III of the indictment charged only in the
naked language of the statute.

91

To satisfy Sixth Amendment notice requirements, an indictment must be

"accompanied with such a statement of the facts and circumstances as will
inform the accused of the specific offence." Hamling v. United States, 418 U.S.
87, 117-18, 94 S.Ct. 2887, 2908, 41 L.Ed.2d 590 (1974) (emphasis added;
quoting United States v. Hess, 124 U.S. 483, 487, 8 S.Ct. 571, 573, 31 L.Ed.
516 (1887)). Here, Counts II and III lacked such a statement. Those counts
merely charged the appellants, in the statutory language, with violating Sec.
848 by "repeatedly violating Title 21 United States Code, Section 841(a)(1) and
other provisions of Title 21, regarding amphetamine," within a two year period
"within the Eastern District of Oklahoma, and elsewhere." This language could
merely be charging defendants with three incidents of distributing
amphetamines in a suburb of Muskogee, Oklahoma, or it could be charging
defendants with controlling an amphetamine manufacturing operation that
operated nationwide over the entire two-year period, or it could be charging
anything in between. Counts II and III of the indictment tell defendants what
statutes they allegedly violated, but it does not tell them what acts they did that
will form the essential basis of the charge against them.

92

It is sometimes suggested that a defendant can rely on a bill of particulars to fill

in details about an offense. But a bill of particulars cannot fill in "essential"
facts that constitute the very offense charged, for "it is a settled rule that a bill
of particulars can not save an invalid indictment." Russell, 369 U.S. at 770, 82
S.Ct. at 1050. 7

III.
HARMLESS ERROR ANALYSIS INAPPROPRIATE
93

The government argues that any deficiencies in Counts II and III were rendered
"harmless" by the petit jury's guilty verdict. See United States v. Mechanik, 475
U.S. 66, 73, 106 S.Ct. 938, 943, 89 L.Ed.2d 50 (1986) ("the petit jury's verdict
rendered harmless any conceivable error in the charging decision that might
have flowed from the violation"). The government misconstrues the import of
Mechanik. There, the alleged error in the grand jury proceeding was not called
to the district court's attention until the second week of trial, and the motion
was not ultimately ruled upon until after trial. The Supreme Court, in holding
that the relatively technical violation of procedures before the grand jury was
harmless error in that context, specifically stated that it was expressing "no
opinion as to what remedy may be appropriate for a violation of Rule 6(d) that
has affected the grand jury's charging decision and is brought to the attention of
the trial court before the commencement of trial." Id. at 72, 106 S.Ct. at 942.

94

Here, the error was called to the attention of the district court before the trial,

94

Here, the error was called to the attention of the district court before the trial,
and the error does not involve the procedural matters addressed by Rule 6(d) of
the Federal Rules of Criminal Procedure, but rather goes to the very essence of
the grand jury's function. Accordingly, I believe that this issue is controlled by
the rule articulated in United States v. Miller, 471 U.S. 130, 105 S.Ct. 1811, 85
L.Ed.2d 99 (1985), that the right to be tried only on charges presented in an
indictment returned by a grand jury is not governed by the harmless error
standard: "Deprivation of such a basic right [to indictment by a grand jury] is
far too serious to be treated as nothing more than a variance and then dismissed
as harmless error." Id. at 140, 105 S.Ct. at 1817 (quoting Stirone v. United
States, 361 U.S. 212, 217, 80 S.Ct. 270, 273, 4 L.Ed.2d 252 (1960). See also
Russell, 369 U.S. at 763, 82 S.Ct. at 1046 ("the substantial safeguards to those
charged with serious crimes cannot be eradicated under the guise of technical
departures from the rules") (construing Rule 7(c); quoting Smith v. United
States, 360 U.S. 1, 9, 79 S.Ct. 991, 996, 3 L.Ed.2d 1041 (1959)); cf. United
States v. Smith, 553 F.2d 1239, 1242 (10th Cir.1977) ("the absence of prejudice
to the defendant does not cure what is necessarily a substantial, jurisdictional
defect in the indictment").

95

In this regard, I agree with the Fourth Circuit's decision in United States v.
Hooker, 841 F.2d 1225, 1233 (4th Cir.1988) (en banc), where the court
dismissed a count that failed to allege interstate commerce even though other
counts in the indictment alleged acts involving interstate commerce. Citing the
Tenth Circuit decision in Smith, 553 F.2d at 1242, the court held that the error
in the defective count could not be harmless under Mechanik even though the
defendant was subsequently convicted by a petit jury under that count:

96 absence of prejudice to the defendant in a traditional sense does not cure a

The
substantive, jurisdictional defect in an indictment. Unlike the situation in Mechanik,
the defect of a completely missing essential element cannot be cured by a later jury
instruction because there is nothing for a petit jury to ratify.... A petit jury verdict
can do no more than show that the grand jury could have given the defendant
adequate notice had it chosen to do so. This cannot undo the harm of failing to give
that notice timely, nor can it confer jurisdiction on the court where none existed.
Neither instructions nor a petit jury verdict can satisfy after the fact the Fifth
Amendment right to be tried upon charges found by a grand jury.
97

Id. at 1232.

98

Because the indictment here failed to conform to minimal constitutional

standards, the harmless error standard does not apply. Therefore, the appellants'
convictions on the CCE charges should be reversed.

IV.
CONCLUSION
99

I am persuaded that merely tracking the statutory language is not sufficient in

this case, and that each count of an indictment must be viewed as a separate
indictment without reference to other counts in the absence of an express
incorporation by reference. Because the majority opinion has split from almost
every other circuit and is, in my opinion, contrary to controlling Supreme Court
precedent, I must respectfully dissent.

21 U.S.C. Sec. 846 provides that "[a]ny person who attempts or conspires to
commit any offense defined in this title is punishable by imprisonment or fine
or both which may not exceed the maximum punishment prescribed for the
offense, the commission of which was the object of the attempt or conspiracy."
21 U.S.C. Sec. 841(a)(1) makes it unlawful for any person "to manufacture,
distribute, or dispense, or possess with intent to manufacture, distribute, or
dispense, a controlled substance."

A person is involved in a continuing criminal enterprise if:

(1) he violates any provision of this title or title III the punishment for which is
a felony, and
(2) such violation is a part of a continuing series of violations of this title or title
III-(A) which are undertaken by such person in concert with five or more other
persons with respect to whom such person occupies a position of organizer, a
supervisory position, or any other position of management, and
(B) from which such person obtains substantial income or resources.
21 U.S.C. Sec. 848.

Both CCE counts read in pertinent part:

Beginning in or about November, 1985, and continuing to on or about the date
of this Indictment, within the Eastern District of Oklahoma, and elsewhere, the
defendant [Teafatiller/Staggs] did knowingly, intentionally, unlawfully and
willfully engage in a continuing criminal enterprise in that he repeatedly
violated Title 21, regarding amphetamine, a Schedule II, stimulant controlled

substance, which violations were part of a continuing series of violations

undertaken by defendant [Teafatiller/Staggs], in concert with at least five other
persons with respect to whom [Teafatiller/Staggs] occupied a position of
organizer, a supervisory position, or any other position of management, and
from which the defendant [Teafatiller/Staggs] obtained substantial income and
resources.
Rec. vol. I, doc. 4 at 6-10.
4

Count one charged each appellant with conspiracy to manufacture, possess, and
distribute amphetamine, see 21 U.S.C. Secs. 846 & 841(a)(1), as well as at least
two overt acts of manufacturing or possession in furtherance of that conspiracy.
Rec. vol. I, doc. 4 at 1-4. Thus, each were charged with three violations
sufficient, when proved, to support a CCE conviction. See United States v.
Hall, 843 F.2d 408, 411 (10th Cir.1988)

The dissent contends that prior to these statements, the court in Neal had
already explicitly held that the count in question, count one, was sufficient by
itself. Dissent, op. at 1538. This contention is untenable. The discussion in Neal
begins with the ultimate conclusion that count one is sufficient; that conclusion
is then followed by more than a page of supporting reasoning. It is in this
discussion explaining the sufficiency of count one that the court looked to other
counts, not explicitly incorporated by reference, to reveal further the nature of
the charge and the evidence before the grand jury. Neal, 692 F.2d at 1302.
(Immediately following this reference to other counts, a footnote specifically
lists the requirements of an indictment, including the grand jury function, id. at
n. 5.). The court describes details alleged in other counts, and later concludes
with its actual holding regarding count one: "We nevertheless feel the
indictment was not fatally defective in view of the other details alleged, which
we have noted." Id. at 1303. It is inescapable that some of these details came
from other counts not explicitly incorporated by reference

After citing cases from other circuits requiring explicit incorporation by

reference, the dissent criticizes the use of Moya-Gomez, Esposito, and Becton
in part because they dealt only with the notice requirement of an indictment,
rather than the grand jury function emphasized by the dissent, an emphasis we
reject infra at p. 1534. See Dissent, op. at 1538 n. 1. Despite such criticism, not
one of the cases cited by the dissent as more persuasive than the above
authorities mentions how the rule of express incorporation by reference relates
to the grand jury function, and only one mentions how the rule relates to any of
the constitutional requirements relevant to indictments, that being notice. See
United States v. Hajecate, 683 F.2d 894, 901 (5th Cir.1982) (notice for
preparation of defense); see also United States v. Miller, 774 F.2d 883, 885 (8th

Cir.1985) (grand jury function considered, but rule of express incorporation by

reference not explained on that basis). In any event, as noted in the text, the
express incorporation cases cited by the dissent conflict with our decision in
Neal, which, explicitly considering the grand jury function, looked to
indictment counts not expressly incorporated by reference
The dissent also criticizes Esposito, Becton, and United States v. Zavala, 839
F.2d 523, 526 (9th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 86, 102 L.Ed.2d 62
(1988), because unlike the instant case, the indictments in those cases were not
challenged at trial. Interestingly, only Zavala, which we did not even rely upon,
factored the lack of objection at trial into its standard of review. Zavala, 839
F.2d at 526. The court in Becton concluded that the indictment "did not
prejudice Becton in any way," 751 F.2d at 256, and the court in Esposito
determined that reversal was "unnecessary to protect the rights of the
defendants," 771 F.2d at 289. These decisions were grounded on substantive
concerns and cannot be read as being in any way tied to a liberal construction
of indictments based on the timing of objections. This is evidenced by the
decision in Moya-Gomez, where the defendant did object at trial, and where the
court relied on Becton to uphold the sufficiency of the indictment. MoyaGomez, 860 F.2d at 752.
In the same vein, we must address the dissent's reliance, in this criminal
context, upon cases considering the sufficiency of civil complaints. See
Dissent, op. at 1543-44. This is like comparing apples with oranges. The
underlying processes are structurally different. The criminal proceeding is
monitored from its inception by a district judge (or a magistrate) and a grand
jury, to satisfy probable cause requirements, among other things. The civil
complaint is not screened in the slightest by a court prior to filing, thus
requiring some screening-type rules to be instituted by the court itself. See
Fed.R.Civ.P. 12(b), 56. Finally, the dissent's citation to civil cases is
inconsistent with and undercuts its emphasis on the grand jury function, which
has no relation to the civil context. Nevertheless, the dissent clings to this
comparison, see Dissent, op. at 1544 n. 5, reemphasizing its primary theme of
the grand jury function, but not pointing to any authority or logic suggesting
that the civil complaint context is somehow helpful in analyzing that function.
7

This is the approach counseled by Russell v. United States, 369 U.S. 749, 82
S.Ct. 1038, 8 L.Ed.2d 240 (1962):
"This Court has, in recent years, upheld many convictions in the face of
questions concerning the sufficiency of the charging papers. Convictions are no
longer reversed because of minor and technical deficiencies which did not
prejudice the accused. This has been a salutary development in the criminal

law." Smith v. United States, 360 U.S. 1, 9 [79 S.Ct. 991, 996, 3 L.Ed.2d 1041
(1959) ]. "But ... the substantial safeguards to those charged with serious crimes
cannot be eradicated under the guise of technical departures from the rules."
Ibid. Resolution of the issue presented in the cases before us thus ultimately
depends upon the nature of "the substantial safeguards" to a criminal defendant
which an indictment is designed to provide. Stated concretely, does the
omission from an indictment under 2 U.S.C. Sec. 192 of the subject under
congressional committee inquiry amount to no more than a technical deficiency
of no prejudice to the defendant? Or does such an omission deprive the
defendant of one of the significant protections which the guaranty of a grand
jury indictment was intended to confer?
Id. at 763, 82 S.Ct. at 1046.
8

The Court in Russell held that in prosecutions involving 2 U.S.C. Sec. 192,
which prohibits the refusal to answer questions pertinent to a subject under
inquiry by a congressional committee, pertinency to the subject under inquiry is
"the very core of criminality." Russell, 369 U.S. at 764, 82 S.Ct. at 1047. Thus,
the allegation of the subject was necessary to the sufficiency of the indictment,
lest it leave "the chief issue undefined." Id. at 766, 82 S.Ct. at 1048. Because of
this, courts have distinguished Russell as involving a unique situation. See
Neal, 692 F.2d at 1302; United States v. Perkins, 748 F.2d 1519, 1526 n. 11
(11th Cir.1984); United States v. McClean, 528 F.2d 1250, 1257 (2d Cir.1976).
In his dissent in Russell, Justice Harlan expressed the fear that the decision
would not be seen as unique but would lead to detailed indictments in all
criminal cases, contrary to Fed.R.Crim.P. 7(c). See Russell, 369 U.S. at 787,
793, 82 S.Ct. at 1059, 1062

Without the benefit of any factual framework, it is unclear if the dissent is

referring to an amendment (alteration of charging terms), a variance (facts
proved at trial materially different from those alleged), or neither. See United
States v. Weiss, 752 F.2d 777, 787 (2d Cir.), cert. denied, 474 U.S. 944, 106
S.Ct. 308, 88 L.Ed.2d 285 (1985). In any event, this portion of the dissent's
theory is not applicable in the context of evaluating the sufficiency of an
indictment. In Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d
252 (1960), the Supreme Court held that "a court cannot permit a defendant to
be tried on charges that are not made in the indictment against him,"
considering such to be an improper amendment of or variance from the
indictment. Id. at 217, 80 S.Ct. at 273. It is not the anticipation of such an
amendment or variance which invalidates an indictment, however, but the
occurrence of such which may invalidate a conviction. Thus, consideration of
the possible use of unindicted charges or materially different facts at trial is not
relevant to the analysis of the sufficiency of an indictment. While Russell cites

Stirone, the Court in Russell had already concluded that an essential element
was omitted from the indictment, yet proved at trial, therefore rendering the
Stirone analysis applicable. That the possibility of an amendment or variance is
not applicable to evaluation of the sufficiency of an indictment is obvious: such
is always possible, yet not every indictment is invalid. The proper inquiry here
must be limited to the charges in the indictment itself
1

I agree with the majority opinion that the indictment's CCE count in the instant
case has sufficient time, place and offense specificity that, with the record, the
defendants can avoid any double jeopardy problems

The majority cites three cases, two from the Seventh Circuit and one from the
Eighth Circuit, to support its conclusion that the allegations in Count I can be
considered to determine the sufficiency of Counts II and III: United States v.
Esposito, 771 F.2d 283, 288-89 (7th Cir.1985), cert. denied, 475 U.S. 1011, 106
S.Ct. 1187, 89 L.Ed.2d 302 (1986); United States v. Moya-Gomez, 860 F.2d
706, 752 (7th Cir.1988); and United States v. Becton, 751 F.2d 250, 256-57
(8th Cir.1984), cert. denied, 472 U.S. 1018, 105 S.Ct. 3480, 87 L.Ed.2d 615
(1985). See also United States v. Zavala, 839 F.2d 523, 526 (9th Cir.), cert.
denied, --- U.S. ----, 109 S.Ct. 86, 102 L.Ed.2d 62 (1988). I do not find these
cases persuasive for several reasons. First, in Esposito, Becton, and Zavala, the
defendants did not challenge the sufficiency of the indictment before the district
court. Because "judicial efficiency requires that tardily-challenged indictments
be construed liberally in favor of validity," United States v. Freeman, 813 F.2d
303, 304 (10th Cir.1987), I do not think those cases are determinative of our
case, where the appellants challenged the indictment before trial. Second,
Becton was decided prior to Miller, 774 F.2d at 885, where the Eighth Circuit
held that each count must be read as a separate indictment, and thus Miller
represents current Eighth Circuit law. Third, none of those cases focused on the
Fifth Amendment right to a grand jury indictment. Esposito, Moya-Gomez, and
Becton dealt only with the notice requirements and concluded that, because the
defendant had actual notice of the predicate offense, the notice requirement was
satisfied. Finally, Esposito, Moya-Gomez, and Zavala did not discuss the
reasons for departing from prior precedent from the same circuit holding that
each count of an indictment must be read as a separate indictment

Moreover, the allegations in the challenged count against the defendant in Neal
(which dealt with a charge of extortion under 18 U.S.C. Sec. 894(a) rather than
a charge of violating 21 U.S.C. Sec. 848) contained significantly more detail
and precision than was present in the challenged counts against Staggs and
Teafatiller

In Miller, the Court rejected Bain 's other holding, not here relevant, that it is

constitutionally impermissible to drop unnecessary allegations from the

indictment
4

The concurring opinion suggests that the failure to allege the specific
transactions that constitute "a continuing series of violations" is similar to the
failure to allege which eye witnesses the prosecutor intends to use to prove a
bank robbery. I respectfully disagree. A defendant does not need to know the
names of the witnesses who will testify against him in order for him to know
precisely what acts the grand jury has charged against him. However, unless
the specific transactions or acts for which he is being charged are set forth in
the indictment, a defendant cannot know what "essential facts" (as opposed to
conclusions of law) were found against him by the grand jury
Moreover, the use of the semantic labels "evidence" or "elements" to determine
the adequacy of an indictment is not very helpful because of the inherent
ambiguity of those labels and because the decision of which label to use is
outcome determinative. For example, the very definition of a continuing
criminal enterprise is the commission of three transactions that violate subchapters I or II of Chapter 13 of Title 21. Hence, the three specific transactions
charged against the defendant together constitute by definition one of the
elements of a CCE crime--the element of a "continuing series of violations."
Surely a simple allegation that a defendant has violated something somewhere
in sub-chapters I or II of Chapter 13 of Title 21 of the United States Code
would not allege with sufficient specificity a crime upon which a defendant
could be convicted. Merely adding additional allegations that the violations
occurred within a two-year period within the Eastern District of Oklahoma and
elsewhere and that they regarded amphetamines would not adequately allege a
substantive crime under sub-chapters I or II of Chapter 13 of Title 21 of the
United States Code. It is hard to see, therefore, how repeating those generalized
legal conclusions three times over is somehow sufficient to allege a continuing
criminal enterprise under 21 U.S.C. Sec. 848.

The majority would dismiss this comparison between civil and criminal
pleading requirements because "[t]he underlying processes are structurally
different" and "[t]he criminal proceeding is monitored from its inception by ... a
grand jury." (Majority Opinion at n. 5). However, it is precisely to ensure this
critical monitoring process by the grand jury that we must insist that the grand
jury find and explicitly include in the indictment all the essential facts of the
crime charged in the indictment. If the grand jury can merely write a blank
check and leave it to the prosecutor to fill in the blanks by deciding later which
"essential facts" should form the basis of the prosecution against the defendant,
then the monitoring process of the grand jury, upon which the majority appears
to rely, is imperiled

The majority cite cases from other circuits that reached a different result. See,
e.g., United States v. Amend, 791 F.2d 1120, 1125 (4th Cir.), cert. denied, 479
U.S. 930, 107 S.Ct. 399, 93 L.Ed.2d 353 (1986); United States v. Johnson, 575
F.2d 1347, 1356 (5th Cir.1978), cert. denied under various names, 440 U.S.
907, 99 S.Ct. 1214, 59 L.Ed.2d 454 (1979); United States v. Sperling, 506 F.2d
1323, 1344 (2d Cir.1974), cert. denied under various names, 420 U.S. 962, 95
S.Ct. 1351, 43 L.Ed.2d 439 (1975), 421 U.S. 949, 95 S.Ct. 1682, 44 L.Ed.2d
103 (1975); United States v. Sterling, 742 F.2d 521, 526 (9th Cir.1984), cert.
denied, 471 U.S. 1099, 105 S.Ct. 2322, 85 L.Ed.2d 840 (1985). Those cases,
and others that have held that tracking the statutory language is sufficient, or, in
the alternative, that the predicate acts need not be alleged, have generally
limited their analysis to notice and double jeopardy concerns, and have not
focused on the Fifth Amendment right to have a grand jury issue the indictment
and define the charges which the defendant must answer at trial. In any event,
to the extent that those cases are inconsistent with Russell, I disagree with them

In any event, a bill of particulars is answered by the prosecutor, not by the

grand jury. Therefore, whatever it might do to satisfy the notice requirement, a
bill of particulars does nothing to protect the defendant's right to have the grand
jury operate as the gatekeeper to decide which specific offenses he will be
required to defend against in a criminal trial. If a prosecutor, by means of a bill
of particulars, can unilaterally choose which transactions within a two-year
period the defendant must respond to, then the prosecutor is usurping the grand
jury's role